Illinois Supreme Court deciding 'take home' asbestos case; CSX says if allowed would create 'unlimited universe' of plaintiffs

Steve Korris Mar. 22, 2011, 3:49am


SPRINGFIELD – Illinois Supreme Court Justices must decide whether to allow claims that asbestos caused disease in families of workers who brought fibers home on their clothing.

CSX Transportation seeks to reverse appeals judges who ruled that the railroad should have warned the late Annette Simpkins about hazards her late husband Ronald Simpkins brought home.

"The list of potential plaintiffs is endless," Kurt Reitz, of Thompson and Coburn in Belleville, wrote for CSX in February.

He wrote that in asbestos litigation, "once a duty is recognized, it will quickly become a magnet for new attempts to expand its scope."

Ronald Simpkins worked for B&O Railroad from 1958 to 1964.

He and Annette divorced in 1965.

In 2007, she sued CSX and 72 other companies in Madison County.

She blamed CSX for "take home" exposure, as successor to B&O.

CSX moved to dismiss, denying it owed any duty to warn families of employees.

Annette Simpkins died three months after suing, and Circuit Judge Daniel Stack substituted daughter Cynthia as plaintiff.

At a hearing, CSX argued that only appellate courts or legislatures can create new causes of action.

Stack dismissed the case and said, "It sounds like a great argument for the Supreme Court."

Fifth District judges in Mount Vernon reversed Stack last year, finding B&O should have foreseen a risk to Annette while Ronald worked for the railroad.

"CXS argues that the B&O Railroad did not know of the dangers of take-home asbestos while Ronald Simpkins worked for it," Justice Melissa Chapman wrote.

"The question, however, is not whether the employer actually foresaw the risk to Annette Simpkins; rather, the question is whether, through reasonable care, it should have foreseen the risk," she wrote.

"While apparently the likelihood of contracting mesothelioma or another asbestos related lung disease through take-home exposure varies depending on the duration of exposure, these cases also demonstrate that the likelihood of developing such a disease from anything more than incidental exposure is not remote," she wrote.

"We do not believe that the issue of whether anyone other than a member of an employee's immediate family is owed a duty is before us," she wrote.

"Whether harm to any such person is foreseeable depends on an assessment of circumstances not presented in this case," she wrote.

"While we do not expressly limit the duty to immediate family members, we decide today only that employers owe the immediate families of their employees a duty to protect against take-home asbestos exposure," she wrote.

"Should a proper case arise, we can consider whether the duty extends to others who regularly come into contact with employees who are exposed to asbestos containing products," she wrote.

"Duty is not the equivalent of liability; she must still prove a breach and proximate cause," she wrote.

Justices James Donovan and James Wexstten concurred.

Reitz appealed to the Supreme Court, writing that the decision "creates a specter of massive liability to an unlimited universe of potential plaintiffs."

He wrote that Simpkins died of lung cancer after smoking a pack and a half a day for 41 years.

Heath Hooks, a colleague of Reitz at Thompson Coburn in Belleville, also represents CSX.

So do Michelle Odorizzi of Chicago and Andrew Tauber of Washington, both with the firm of Mayer Brown.

John Barnerd and Amy Garrett, both of John Simmons's firm in East Alton, and Charles Chapman of Lakin Chapman in Wood River, represent Cynthia Simpkins.

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